United States District Court, D. Arizona
REPORT AND RECOMMENDATION
HONORABLE D. THOMAS FERRARO, UNITED STATES MAGISTRATE JUDGE
the Court is a Petition Under 28 U.S.C. § 2241 for a
Writ of Habeas Corpus by a Person in Federal Custody
(Petition). (Doc. 1.) This Court determines that the District
Court does not have jurisdiction to consider the Petition.
This is because Petitioner cannot establish the narrow
circumstances under which the “savings clause”
(also referred to the “escape hatch” provision)
of 28 U.S.C. § 2241 is satisfied.
Petitioner filed a direct appeal to the United States Court
of Appeals for the Ninth Circuit and three (3) petitions
seeking habeas relief under 28 U.S.C. § 2255 in the
Central District for the District of California.
Petitioner's direct appeal and his three § 2255
petitions were denied. For this Court to consider the instant
§ 2241, Petitioner must establish both his actual
innocence and that he has not had an unobstructed
“procedural shot” at presenting the claims raised
in the Petition. As explained below, Petitioner has failed to
do so and this Court recommends that the District Court
deny the Petition.
2004, Petitioner organized the armed robberies of at least
three banks in the Los Angeles, California, area over a
six-month time period. (Doc. 11 at ¶ 1.) Petitioner did
not enter the banks during the robberies; his role was
selecting and casing the banks to be robbed, planning the
robberies, instructing crew members on their roles in the
robberies, and providing disguises for the robbers.
Id. at Ex. 2 (under seal) at ¶¶ 20, 24-27,
32-34, 38-44; Ex. 3 at pp. 20-22. Petitioner was ultimately
charged with one count of conspiring to commit three armed
bank robberies (Count 1), one count of attempted bank robbery
(Count 2), two counts of armed bank robbery (Counts 4 and 6)
and three counts of knowingly using, carrying or brandishing
a firearm during a crime of violence in violation of 18
U.S.C. § 924(c)(1)(A)(ii) & (iii) (hereinafter,
“§ 924(c)”) (Counts 3, 5, and 7).
Id. at Ex. 1. Based only on the three § 924(c)
charges in the First Superseding Indictment, Petitioner faced
a statutory mandatory minimum sentence of at least 57
entered a conditional plea agreement that provided he would
plead guilty to conspiracy (Count 1), attempted armed bank
robbery (Count 2), two counts of armed bank robbery (Counts 4
and 6) and the use, carrying, brandishing and discharging a
firearm (Count 5). Id. at Ex. 3. The conductional
plea agreement permitted Petitioner to appeal the denial of
his motion to suppress certain intercepted communications. In
the plea agreement, Petitioner also agreed that he qualified
as a career offender pursuant to United States Sentencing
Guidelines (USSG) § 4B1.1(a) and that a 30-year term of
imprisonment was appropriate. Id. at pp. 10-11. In
exchange for his guilty plea, the government agreed to
dismiss the two other § 924(c) counts charged in the
First Superseding Indictment. Those § 924(c) counts
carried a combined 50-year mandatory consecutive sentence.
Id. at pp. 12-13. At the change of plea hearing,
Petitioner affirmed his understanding that he was admitting
guilt as set forth in the plea agreement. (Doc. 11 at Ex. 4.)
The United States District Court for the Central District of
California accepted Petitioner's guilty plea.
presentence report guidelines calculations tracked the
calculations agreed to by the parties in the plea agreement
with one exception: the presentence report applied a 2-level
enhancement for physical restraint for one of the armed
robberies. Id. at Ex. 2 at pp. 14-15; Ex. 3 at p. 9.
Accordingly, the United States Probation Office calculated
Petitioner's sentencing range to be 355-413 months as
opposed to 330-382 months as set forth in the plea agreement.
Id. at Ex. 2 at p. 34; Ex. 3 at p. 10. In its
sentencing position statement, the government asked the
district court to impose a sentence of 30 years'
imprisonment per the plea agreement. Id. at Ex. 5.
On May 5, 2008, Senior District Judge Lew sentenced
Petitioner to 30 years in prison consistent with the plea
agreement. Id. at Ex. 7.
permitted by the plea agreement, Petitioner appealed the
district court's denial of his motion to suppress. On
December 30, 2009, the Ninth Circuit denied Petitioner's
appeal. Id. at Ex. 8.
First § 2255 Habeas Petition
December 17, 2010, Petitioner filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2255. Id.
at Ex. 9. As grounds for relief, Petitioner alleged that he
was not competent to accept the terms of the negotiated plea
agreement or to enter a guilty plea claiming that he was
under the influence of medication to treat mental illness at
the time of his guilty plea and that his trial counsel
rendered ineffective assistance by allowing him to plead
guilty. Id. Senior District Judge Lew denied
Petitioner's petition. Id. at Ex. 10.
Thereafter, Petitioner filed a motion “for
reconsideration to alter or amend judgement.”
Petitioner's motion was denied. (Doc. 11 at Exs. 11, 12.)
Both Judge Lew and the Ninth Circuit, denied Petitioner's
request for a certificate of appealability. Id. at
Exs. 13, 14.
Second or Successive § 2255 Petition
February 10, 2014, without first applying to the Ninth
Circuit for leave to file a second or successive § 2255
petition, Petitioner filed a second § 2255 petition
raising the same claim that he raised in his first §
2255 petition. Id. at Ex. 15. The government filed a
motion to dismiss which was granted by Senior District Judge
Lew. Id. at Ex. 16. On July 22, 2014, Petitioner
moved for reconsideration which Judge Lew denied.
Id. at Exs. 17, 18.
Third or Subsequent Successive ...